United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2023 Decided June 7, 2024

No. 23-5067

MEDICAL IMAGING & TECHNOLOGY ALLIANCE AND 

ADVANCED MEDICAL TECHNOLOGY ASSOCIATION,

APPELLANTS

v.

LIBRARY OF CONGRESS AND CARLA HAYDEN, IN HER OFFICIAL 

CAPACITY AS LIBRARIAN OF CONGRESS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-00499)

Michael B. Kimberly argued the cause for appellants. With 

him on the briefs were Peter Tolsdorf and Alex C. Boota.

Michael Pepson and Ryan P. Mulvey were on the brief for 

amicus curiae Americans for Prosperity Foundation in support 

of appellants.

Michael A. Tilghman II, Cory L. Andrews, John M. 

Masslon II, David Y. Chung, and Elizabeth B. Dawson were on 

the brief for amici curiae the National Association of 
2

Manufacturers and Washington Legal Foundation in support of 

appellants.

Laura E. Myron, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were Brian 

M. Boynton, Principal Deputy Assistant Attorney General, and 

Daniel Tenny, Attorney.

Before: RAO and CHILDS, Circuit Judges, and EDWARDS, 

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge CHILDS.

RAO, Circuit Judge: This case raises the question of 

whether copyright rules promulgated under the Digital 

Millennium Copyright Act (“DMCA”) are reviewable under 

the Administrative Procedure Act (“APA”). The DMCA

prohibits the circumvention of technological barriers that 

restrict access to digital copyrighted works. The Librarian of 

Congress promulgated an exemption to that anti-circumvention 

provision, allowing some access to the software of advanced

medical devices. Trade associations representing medical 

device manufacturers sued, claiming the exemption violated 

the APA. The district court held the APA claims were barred 

by sovereign immunity because the Library of Congress is part 

of “the Congress” and therefore not an “agency” within the 

meaning of the APA’s judicial review provision.

Irrespective of whether the Library is an “agency,” 

however, Congress has specified that copyright regulations 

under Title 17 of the U.S. Code are subject to the APA. The 

Copyright Act of 1976 provides that “all actions” of the 

Register of Copyrights under Title 17—which includes rules 
3

that must be approved by the Librarian—are governed by the 

APA. See 17 U.S.C. §§ 701(e), 702. And the DMCA authorizes

the Register and Librarian to promulgate a new category of 

rules under Title 17. Reading the two statutes together, we 

conclude that DMCA rules are subject to the APA just like

other copyright rules. The APA therefore provides the 

necessary waiver of sovereign immunity for this suit. 

This interpretation treats Congress’s scheme of copyright 

regulation as a coherent whole and accords with background 

principles for judicial review of administrative action. 

Accordingly, we reverse and remand for the district court to 

assess the APA claims in the first instance.

I.

A.

Although best known as the Nation’s library, the Library 

of Congress quietly exercises significant regulatory authority 

over copyrights. The Library houses the U.S. Copyright Office,

which is headed by the Register of Copyrights. The Copyright 

Act of 1976 conferred broad authority on the Register to make 

copyright rules and reorganized Title 17 of the U.S. Code. See

Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§ 101 

et seq.). The Act specified that the Register acts under the 

direction and supervision of the Librarian, 17 U.S.C. § 701(a),

and that “[a]ll regulations established by the Register under 

[Title 17] are subject to the approval of the Librarian of 

Congress,” id. § 702. As we have recognized, the Librarian is 

a “Head of Department” within the Executive Branch. 

Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 

F.3d 1332, 1342 (D.C. Cir. 2012).

At issue in this case is a rule promulgated under the Digital 

Millennium Copyright Act. See Pub. L. No. 105-304, 112 Stat. 
4

2860 (1998) (codified at 17 U.S.C. §§ 1201 et seq.). The 

DMCA implemented two international treaties by providing

additional protections for digital copyrighted works. Digital 

media had been eligible for copyright protection before the 

DMCA, but advances in technology and the rise of the internet 

facilitated piracy and unlawful reproduction on an 

unprecedented scale. See Green v. U.S. Dep’t of Just., 54 F.4th 

738, 741 (D.C. Cir. 2022). Although owners of digital 

copyrights could protect their creations through technological 

protective measures like passwords or encryption, these 

barriers could be circumvented by new technologies and 

devices. To address these problems, one of the treaties directed 

signatories to “provide adequate legal protection ... against the 

circumvention of effective technological measures that are 

used by authors” to protect their works. World Intellectual 

Property Organization Copyright Treaty art. 11, Dec. 20, 1996, 

2186 U.N.T.S. 121, 155.

To implement that directive, the DMCA created a private 

right of action against anyone who “circumvent[s] a 

technological measure that effectively controls access to a 

work protected under” federal copyright law. 17 U.S.C. 

§§ 1201(a)(1)(A), 1203(a). Congress also authorized criminal 

penalties for violations of section 1201 done “willfully and for 

purposes of commercial advantage or private financial gain.” 

Id. § 1204. In effect, this anti-circumvention provision backed 

private technological protective measures with the force of 

federal law. Such protective measures, however, can also 

frustrate third parties from making “fair use” of copyrighted 

material, depriving society of innovations and other beneficial 

noninfringing uses. See Green, 54 F.4th at 742. To mitigate the 

potential adverse effects of the anti-circumvention provision, 

Congress authorized the Librarian to identify “class[es] of 

copyrighted works” to which the anti-circumvention provision 

“shall not apply.” 17 U.S.C. § 1201(a)(1)(D). The Librarian 
5

grants these exemptions in a rulemaking proceeding every 

three years. Id. § 1201(a)(1)(C).

Triennial DMCA rulemaking proceeds as follows. First, 

the Register makes a “recommendation” to the Librarian about 

whether the “users of a copyrighted work are, or are likely to 

be[,] ... adversely affected” by the anti-circumvention 

provision “in their ability to make noninfringing uses ... of a 

particular class of copyrighted works.” Id. The Register must

determine whether certain proposed uses “are or are likely to 

be noninfringing” under the Copyright Act and whether “the 

prohibition is causing, or ... is likely to cause, an adverse 

impact on those uses.” See Exemption to Prohibition on 

Circumvention of Copyright Protection Systems for Access 

Control Technologies, 86 Fed. Reg. 59627, 59628 (Oct. 28, 

2021). The Register’s adverse impact determination turns on

five factors: the extent to which the copyrighted works are 

available for use; the availability of the works for certain 

nonprofit purposes; the impact of the anti-circumvention 

provision on paradigmatic fair uses; the effect of circumvention 

on the market for the copyrighted works; and additional 

“appropriate” considerations. See 17 U.S.C.

§ 1201(a)(1)(C)(i)–(v).

After assessing the Register’s recommendation and the 

requisite statutory factors, the Librarian determines whether the 

anti-circumvention provision should be waived for a specific 

class of copyrighted works. Id. § 1201(a)(1)(C). Although the 

DMCA entrusts the Librarian with the ultimate decision, as a 

practical matter, the Register performs most of the rulemaking 

functions.

B.

This suit was brought by two trade associations: the 

Medical Imaging & Technology Alliance and the Advanced 
6

Medical Technology Association. They represent 

manufacturers of advanced medical devices such as surgery 

assisting robots, CT scanners, and MRI machines. The 

manufacturers develop custom software for their devices and

use technological protective measures to shield their

copyrighted computer programs from unwanted access.

When the devices break down, however, the technological 

protections may restrict users such as hospitals and health care 

providers from employing their own servicemen to

troubleshoot and fix the devices. Instead, users must rely on the

device manufacturers’ technicians for diagnostics, repairs, and 

maintenance. Some manufacturers provide limited software 

access to independent service operators so they can perform

repairs. But in general, medical device manufacturers have 

resisted allowing third-party servicers to access their software.

In 2020, two independent service operators petitioned the 

Copyright Office for an exemption from the DMCA’s anticircumvention provision. They claimed the manufacturers’ 

technological protections were blocking access to “error logs, 

configuration files, and other unprotected works” in addition to 

the copyrighted software. This prevented the independent 

service operators from performing diagnosis, maintenance, and 

repairs on medical devices, functions that were particularly 

critical during the COVID-19 pandemic. The independent 

operators also alleged that the device manufacturers were using

their technological protective measures to monopolize the 

maintenance services market and force hospitals to pay more 

for licensed repairmen. The independent operators insisted

their repair services were “fair use[s]” and that they should be 

able to lawfully access the manufacturers’ software and other 

data files.
7

The Register solicited comments on an exemption that 

would allow independent service operators to bypass 

technological protective measures on medical devices for the 

purpose of diagnosis, modification, or repair. Exemptions to 

Permit Circumvention of Access Controls on Copyrighted

Works, 85 Fed. Reg. 65293, 65307 (Oct. 15, 2020). The trade 

associations opposed the proposed exemption, arguing the 

independent service operators sought access to the device

manufacturers’ software for purely commercial purposes, 

which were not fair use. Nevertheless, in a report submitted to 

the Librarian, the Register recommended granting the 

exemption. She first concluded the independent service 

operators’ maintenance and repair services were noninfringing 

“fair uses” of the copyrighted software under the relevant 

statutory factors. Next, the Register found the exemption was

justified because, under the five DMCA factors in 17 U.S.C. 

§ 1201(a)(1)(C), the anti-circumvention provision was causing 

or was likely to cause “an adverse impact on the noninfringing 

diagnosis, repair, and maintenance of medical devices and 

systems.”

In the final triennial rule, the Librarian incorporated the 

Register’s recommendation and granted the exemption, which 

permits the circumvention of technological protective 

measures on “[c]omputer programs that are contained in and 

control the functioning of a lawfully acquired medical device 

or system, and related data files, when circumvention is a 

necessary step to allow the diagnosis, maintenance, or repair of 

such a device or system.” 37 C.F.R. § 201.40(b)(15).

C.

The trade associations sued the Library and the Librarian, 

seeking declaratory and injunctive relief. They claimed the 

Librarian violated the APA by granting the exemption, the 
8

Librarian acted ultra vires, and the Librarian’s exercise of 

rulemaking power was unconstitutional because it was either a 

legislative decision rendered without bicameralism and 

presentment or an executive rulemaking performed by a 

congressional officer.

The district court granted the Library’s motion to dismiss, 

rejecting each of the trade associations’ claims. Med. Imaging 

& Tech. All. v. Libr. of Cong., No. CV 22-499, 2023 WL 

2387760, at *8–9 (D.D.C. Mar. 7, 2023). First, the court held

the APA claims were barred by sovereign immunity. Id. at *9. 

The district court concluded that although the APA waives 

sovereign immunity for non-monetary claims against federal 

agencies, “the Congress” is exempt from the APA’s definition 

of “agency,” and “[t]he Library of Congress isindisputably part 

of Congress.” Id. (cleaned up). The district court relied in part

on earlier decisions of this court that concluded the Library was 

part of “the Congress” and therefore not subject to APA 

review. Id. at *10 (citing Clark v. Libr. of Cong., 750 F.2d 89,

102–03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of Cong. v. 

Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985); Wash. 

Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1449 (D.C. 

Cir. 1994)).

Second, the district court rejected the trade associations’ 

ultra vires claim because the Librarian did not “plainly act[] in 

excess of her delegated powers and contrary to a specific 

prohibition in the statute that is clear and mandatory.” Id. at 

*13 (cleaned up). And finally, the court held the DMCA 

rulemaking did not run afoul of the separation of powers. Id. at 

*14.

The trade associations abandon their constitutional 

arguments on appeal, but they maintain that DMCA rules are 

reviewable under the APA because the Library is an “agency” 
9

insofar as it engages in executive rulemaking functions. In the

alternative, the trade associations contend the Librarian acted 

ultra vires. We consider these legal issues and the district 

court’s grant of the motion to dismiss de novo. See Kim v. 

United States, 632 F.3d 713, 715 (D.C. Cir. 2011).

II.

The threshold question is whether the challenged DMCA 

rule is reviewable under the APA. We conclude that it is. The 

APA provides that “[a]gency action made reviewable by 

statute” is “subject to judicial review.” 5 U.S.C. § 704. In the 

Copyright Act of 1976, Congress specified that actions under 

Title 17 are governed by the APA. See 17 U.S.C. § 701(e). 

DMCA rules are promulgated under Title 17. See id. 

§ 1201(a)(1)(C)–(D). It follows that the trade associations may 

challenge the triennial rule because the APA provides the cause 

of action for this suit and the necessary waiver of sovereign 

immunity.

A.

The parties and the district court analyzed the question of 

reviewability by focusing on whether the Library was part of 

Congress. The APA provides a cause of action and a waiver of 

sovereign immunity for non-monetary claims against an 

“agency” or “an officer ... thereof,” 5 U.S.C. § 702, but the 

APA carves out “the Congress” from the definition of 

“agency,” id. § 701(b)(1)(A). Because the Library believes it is 

a component of “the Congress,” it maintains it is not an 

“agency,” and thus the APA’s cause of action and waiver of

sovereign immunity do not apply to this suit.

This framing, however, fails to account for the fact that

Congress can provide for APA review of the DMCA 

regulations by statute, regardless of whether the Library is an 
10

“agency.” The APA provides a general framework for review 

of agency action, but Congress may, and often does, apply this 

framework to other government actions. For instance, the 

Sentencing Reform Act of 1984 explicitly extended provisions 

of the APA to the U.S. Sentencing Commission, even though 

the Commission was arguably not an APA “agency.”1See 

Wash. Legal Found., 17 F.3d at 1449–50.

In the Copyright Act, Congress provided that copyright 

regulations are reviewable under the APA. The Act expanded 

the Register’s rulemaking authority and provided that, with one 

exception not relevant here, “all actions taken by the Register 

of Copyrights under [Title 17] are subject to the provisions of 

the Administrative Procedure Act.” 17 U.S.C. § 701(e). We 

have previously reviewed actions of the Register based on this 

provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878, 

879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v. 

Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section 

701(e) refers to actions of the Register, the Register is 

subordinate to the Librarian and “shall act under the Librarian’s 

... direction and supervision.” 17 U.S.C. § 701(a). More 

specifically, “[a]ll regulations established by the Register under 

[Title 17] are subject to the approval of the Librarian of 

Congress.” Id. § 702. In short, Congress provided that the 

Register may establish copyright regulations, with the approval 

of the Librarian, and that such regulations are subject to the 

APA and are judicially reviewable.

1 Similarly, Congress may withdraw agency action from APA review 

that would otherwise be subject to it. See, e.g., Fed. Express Corp. v. 

U.S. Dep’t of Com., 39 F.4th 756, 763 (D.C. Cir. 2022) (recognizing 

Congress had exempted certain functions of the Department of 

Commerce from the APA’s judicial review provisions).
11

Congress conferred authority for the triennial rules at issue 

here in the DMCA, which added the following provision to 

Title 17: “[T]he Librarian of Congress, upon the 

recommendation of the Register of Copyrights, ... shall make 

the determination in a rulemaking proceeding” whether to 

waive the anti-circumvention provision for certain classes of 

copyrighted works. Id. § 1201(a)(1)(C). In other words, the 

DMCA authorized a new type of copyright regulation that 

would be formulated by the Register and approved by the 

Librarian. 

Reading the two statutes as a comprehensive statutory 

scheme, DMCA rules are also subject to the APA under 17 

U.S.C. § 701(e). The Copyright Act plainly applies the APA to

“all actions” of the Register under Title 17, including

rulemaking subject to the approval of the Librarian. See id.

§§ 701(e), 702. DMCA rules are also actions of the Register

under Title 17 that, like the Register’s other regulations, require 

the approval of the Librarian.

Because the DMCA and the Copyright Act address the 

rulemaking authority of the Register and Librarian, the two 

statutes are in pari materia and should be construed “as if they 

were one law.” United States v. Freeman, 44 U.S. (3 How.) 

556, 564 (1845). “[I]t is ... the most rudimentary rule of 

statutory construction ... that courts do not interpret statutes in 

isolation, but in the context of the corpus juris of which they 

are a part, including later-enacted statutes.” Branch v. Smith, 

538 U.S. 254, 281 (2003) (plurality opinion). The DMCA 

establishes new rulemaking authority within Title 17, 
12

supplementing the regulatory scheme established by the 

Copyright Act.2

Although the Copyright Act emphasizes the Register’s 

role in rulemaking and the DMCA focuses on the Librarian’s, 

the assignment of regulatory authority is identical. The DMCA

gives rulemaking authority to the Librarian, who explicitly acts 

upon the recommendation of the Register. 17 U.S.C. 

§ 1201(a)(1)(C). This parallels the Copyright Act, which 

requires the Librarian to approve all copyright regulations

developed by the Register. See id. § 702. Both statutes require 

the Register to initiate or propose copyright rules and the 

Librarian to approve them.

3 Thus, although the DMCA is silent 

with respect to judicial review, the review provision of the 

Copyright Act, codified at 17 U.S.C. § 701(e), applies with 

equal force to DMCA rules. 

Because triennial DMCA rules are subject to the APA, 

sovereign immunity poses no barrier to the trade associations’ 

suit. Waivers of the United States’ sovereign immunity must 

be “unequivocally expressed.” United States v. Nordic Vill. 

2 The in pari materia canon reflects the basic principle that courts 

should read related bodies of law as a consistent and coherent whole.

The canon has been invoked in a variety of contexts, including when 

a later statute amends a prior enactment or when different provisions 

of a statutory scheme address a similar topic. See, e.g., United States 

v. Jenkins, 50 F.4th 1185, 1207 (D.C. Cir. 2022) (explaining that an 

act amending a prior statute “should be read in pari materia” with 

the section it amended); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 

U.S. 635, 638 (2009) (interpreting two subsections within the same 

statutory section in pari materia).

3 As a practical matter, the Library explains the triennial rules are 

developed like other copyright regulations with the Register 

conducting “most aspects of the rulemaking” and the Librarian 

providing the final approval.
13

Inc., 503 U.S. 30, 33 (1992) (cleaned up). But there is no 

dispute that the APA unambiguously waives sovereign 

immunity for non-monetary claims. 5 U.S.C. § 702. It is true 

that, by its terms, the APA’s waiver of sovereign immunity 

applies to “agenc[ies]” and the “officer[s] ... thereof.” Id. But 

regardless of whether the Library is an “agency” under the 

APA, Congress has plainly applied the APA’s waiver of 

sovereign immunity to the actions of the Register and Librarian 

at issue here. Sections 701(e) and 702 of Title 17 expressly 

bring copyright rules promulgated by the Register and 

approved by the Librarian within the ambit of the APA. DMCA 

rules are promulgated by the Register and approved by the 

Librarian, and thus the APA’s waiver of sovereign immunity 

applies to the trade associations’ suit against the Library and 

Librarian.

B.

Recognizing that the APA applies to the triennial rules is 

the most coherent interpretation of the scheme of copyright 

regulation established by Congress in the Copyright Act and 

the DMCA. Moreover, this interpretation comports with 

longstanding background principles of judicial review.

When Congress authorizes agencies to regulate or to 

administer the law subject to specific legal requirements, such 

executive action is ordinarily subject to judicial review. See 

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

“[T]he power of ... agencies is circumscribed by the authority 

granted,” and courts have the responsibility to determine 

whether “individual rights” have been infringed “by the 

exertion of unauthorized administrative power.” Stark v. 

Wickard, 321 U.S. 288, 309–10 (1944). Agencies must operate 

within the legal authority conferred by Congress, and when 
14

those limits are transgressed, an individual may seek recourse 

in the Article III courts.

This tradition of judicial review follows from the 

Constitution’s structure of separated powers and long predates 

the APA. As Chief Justice Marshall recognized, “[t]he very 

essence of civil liberty ... consists in the right of every 

individual to claim the protection of the laws.” Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 163 (1803). He later wrote

that “in a government of laws and of principle,” when an 

official takes an action against private rights, the affected 

individual should generally have an “appeal to the laws of his 

country.” United States v. Nourse, 34 U.S. (9 Pet.) 8, 28–29 

(1835). In the words of one leading scholar: “[T]here is in our 

society a profound, tradition-taught reliance on the courts as 

the ultimate guardian and assurance of the limits set upon 

executive power by the constitutions and legislatures.” LOUIS 

L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 321 

(1965). After all, “[a]n agency is not an island entire of itself. 

... The very subordination of the agency to judicial jurisdiction 

is intended to proclaim the premise that each agency is to be 

brought into harmony with the totality of the law.” Id. at 327. 

Congress’s “historic practice” of providing for judicial 

review of administrative action reflects the importance of an 

independent check on the exercise of executive power. Bowen 

v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670–73 

(1986). Of course, Congress may, subject to constitutional 

limitations, withhold judicial review. Id. at 672–73; cf. Patchak 

v. Zinke, 138 S. Ct. 897, 906 (2018) (recognizing Congress’s 

power to “strip[] federal jurisdiction over a class of cases”). But 

absent such a legislative decision, courts have the power and 

the duty to review agency action for conformity with the law. 
15

Reading section 701(e) to provide for judicial review of 

triennial DMCA rules aligns with fundamental principles

regarding the protection of individual rights against unlawful 

government action. To begin with, the Copyright Act and the 

DMCA give the Register and Librarian significant authority to 

“promulgate copyright regulations” and “apply the statute to 

affected parties.” See Intercollegiate Broad., 684 F.3d at 1342. 

As we have recognized, and no party disputes, these powers are 

“generally associated in modern times with executive 

agencies.” Id. When enacting regulations and enforcing the 

law, “the Library is undoubtedly a component of the Executive 

Branch.” Id. (cleaned up). Moreover, the triennial rules directly 

affect valuable property rights, such as a copyright holder’s 

ability to limit access to a digital creation and to prevent 

intellectual property theft. The triennial rules also provide 

exemptions from civil and criminal liability that would 

otherwise attach to individuals who circumvent technological 

protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04.

The exemptions are not left solely to the Librarian’s discretion, 

but instead must be determined according to specific statutory

criteria. Id. § 1201(a)(1)(C). There is no indication in the 

DMCA that Congress, having allocated this substantial 

regulatory power to the Librarian and Register and identified

the legal criteria they must apply, would leave such power 

unchecked by judicial review. 

These background principles about the role of judicial 

review accord with our interpretation of the Copyright Act and 

the DMCA that the triennial rules, like other copyright 

regulations, are subject to the APA and are judicially 

reviewable.
16

C.

The Library raises a series of arguments for why judicial 

review is barred, but none addresses the essential connection 

between the Copyright Act and the DMCA. Nor does the 

Library seriously grapple with 17 U.S.C. § 701(e), which 

subjects all actions of the Register, including rules approved by 

the Librarian, to the APA.

First and foremost, the Library insists it is a component of 

“the Congress” and therefore not an “agency” for purposes of 

the APA’s waiver of sovereign immunity. But the precedents

on which the Library relies considered only whether the APA 

was applicable by its own terms. See Clark, 750 F.2d at 102; 

Ethnic Emps., 751 F.2d at 1416 n.15; Wash. Legal Found., 17 

F.3d at 1449. None of these cases involved an action of the 

Register or Librarian under Title 17, and so there was no reason 

to consider the application of section 701(e). In Clark, for 

instance, a plaintiff brought constitutional and employment 

discrimination claims against the Library, alleging that the 

Library improperly investigated and refused to hire him 

because of his political beliefs and associations. See 750 F.2d 

at 92. In that context, we explained the APA’s waiver of 

sovereign immunity did not apply to the Library because it was 

not an APA “agency.” Id. at 102. In Ethnic Employees, we 

similarly found that an employee organization could not assert 

an APA claim against the Library because the Library “is not 

an agency under the [APA].” 751 F.2d at 1407, 1416 n.15. And 

Washington Legal Foundation merely summarizes the holding 

of Ethnic Employees in dictum. See 17 F.3d at 1449. 

Even if these cases generally classify the Library as a 

component of “the Congress” under the APA, Congress may 
17

still apply the APA to particular actions of the Librarian and 

Register by statute.

4

It did precisely that in 17 U.S.C. § 701(e).

5

Second, the Library relies upon the fact that the Librarian

has been authorized to “make rules and regulations for the 

government of the Library” for over a century, yet she has 

never followed the APA’s procedures when making such rules.

Act of Feb. 19, 1897, ch. 265, 29 Stat. 538, 544 (now codified 

at 2 U.S.C. § 136). The cited rulemaking authority, however,

pertains only to the internal management of the Library, and 

such rules are generally exempt from the APA’s procedural 

requirements for informal rulemaking. See 5 U.S.C. 

§ 553(a)(2). Thus, the Librarian’s alleged disregard of the APA

for such rules tells us nothing about the applicability of the 

APA to copyright regulations promulgated under Title 17. In 

any event, we conclude only that triennial DMCA rules are 

subject to the APA under section 701(e); we have no occasion 

to consider whether the APA applies to the Librarian’s other 

statutory responsibilities. 

Third, the Library raises a series of statutory arguments for 

why the APA’s waiver of sovereign immunity does not allow 

for a suit challenging the triennial rules. The Library maintains

that applying the APA to the Library and its officers would 

4 Furthermore, we have recently recognized the important executive

power exercised by the Library, suggesting that whatever the 

Library’s historical association with Congress, it is squarely a 

component of the Executive Branch in its role as a copyright 

regulator. Intercollegiate Broad., 684 F.3d at 1341–42.

5 Because we understand section 701(e) to provide for judicial review 

of DMCA rules, we need not address the trade associations’ novel 

theory that the Library is an APA agency and subject to judicial 

review when it takes on an “executive ‘rulemaking’ role” but not an 

APA agency when it does not.
18

render section 701(e) superfluous. There would have been no 

need for Congress to authorize judicial review in the Copyright 

Act if the APA’s judicial review provisions already applied. 

But in light of our caselaw, we need not, and do not, reach the 

question of whether the Library is an “agency” within the 

meaning of the APA. Instead, we recognize that, regardless of 

whether the Library is an APA “agency,” section 701(e) applies 

the APA to “all actions” of the Register under Title 17,

including regulations approved by the Librarian.

The Library and the dissent also contend that triennial 

rules are actions of the Librarian, not the Register, and so

section 701(e) simply does not apply. Relying on the 

presumption against waivers of sovereign immunity, the 

dissent suggests that section 701(e) cannot authorize suits 

against the Librarian because it mentions only the Register by 

name. Dissenting Op. 1–3. But “the sovereign immunity canon 

is a tool for interpreting the law and ... does not displace the 

other traditional tools of statutory construction.” FAA v. 

Cooper, 566 U.S. 284, 291 (2012) (cleaned up). Thus, “we ... 

require ... that the scope of Congress’ waiver be clearly 

discernable from the statutory text in light of traditional 

interpretive tools.” Id. As we have already explained in detail, 

the statutory text, context, the in pari materia canon, and 

background principles all confirm that—by making copyright 

regulations reviewable—Congress applied the APA’s clear 

waiver of sovereign immunity to both the Register and 

Librarian when they issue such rules. 

Relatedly, the Library stresses that the Register’s 

participation in triennial rulemaking is not reviewable agency 

action because her recommendation is not “final”—it must be 

approved by the Librarian. On the Library’s view, section 

701(e) applies only to actions of the Register that require no 

further approval. But this argument proves too much because 
19

the Register has no final rulemaking authority. 17 U.S.C.

§ 702. Under the Library’s rationale, no copyright regulations 

would be judicially reviewable. Such a startling result would 

eviscerate Congress’s clear directives, which subject “all 

actions” of the Register under Title 17 to the APA and require

the Librarian to approve the Register’s regulations.

6

In sum, none of the Library’s counterarguments 

undermine our conclusion that the text and structure of the 

DMCA and the Copyright Act provide for APA review of 

triennial DMCA rules.

* * *

Congress provided that the APA applies to copyright rules 

under Title 17, which includes the triennial DMCA rule

challenged here. This conclusion accords with the background 

principle favoring judicial review of administrative action and 

harmonizes the scheme of copyright regulation and judicial 

review established by the Copyright Act and the DMCA. We 

interpret the statutes “as a symmetrical and coherent regulatory 

scheme,” “reconciling many laws enacted over time, and 

getting them to ‘make sense’ in combination.” FDA v. Brown 

& Williamson Tobacco Corp., 529 U.S. 120, 133, 143 (2000) 

(cleaned up).

6 We similarly reject the Library’s other attempts to fracture the 

legislative scheme for copyright regulation. For instance, the Library 

maintains the Librarian’s finalization should not be subject to the 

APA, but it concedes the APA must apply to those parts of the 

triennial rulemaking conducted by the Register. We are not aware of 

any regulatory scheme adopting such a piecemeal application of the 

APA to the process for promulgating rules of general applicability.
20

The trade associations may challenge the triennial rule 

under the APA.7 We vacate the judgment and remand for the 

district court to consider the merits of the APA claims in the 

first instance.

So ordered.

7 The district court rejected the trade associations’ ultra vires claim 

on the merits. Because we hold that Congress has provided for APA 

review of DMCA rules, the ultra vires claim is no longer available,

and we need not address it. See Changji Esquel Textile Co. v. 

Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022) (explaining an ultra 

vires claim can proceed only when a statute impliedly precludes 

judicial review and “no alternative procedure for review of the 

statutory claim” exists) (cleaned up).
CHILDS, Circuit Judge, dissenting: 

The United States is immune from suit absent express 

consent to be sued. United States v. Sherwood, 312 U.S. 584, 

586 (1941); FAA v. Cooper, 566 U.S. 284, 290 (2012) (“a 

waiver of sovereign immunity must be ‘unequivocally 

expressed’ in statutory text.”). Any ambiguities must be 

“construed in favor of immunity.” FAA, 566 U.S. at 290-91.

While I agree that under 17 U.S.C. § 701(e), the

Copyright Act expressly provides that “all actions” of the 

Register of Copyrights under Title 17 are “subject to the 

provisions of the [APA],” I disagree with the majority’s 

conclusion that such language can be expanded to constitute a 

waiver of sovereign immunity for the Library of Congress or 

the Librarian. Neither the text of the Administrative 

Procedure Act (“APA”), the Copyright Act of 1976, nor the 

Digital Millennium Copyright Act (“DMCA”) meet the 

requisite threshold showing that Congress provided “clear or 

express consent” for either entity to be sued. See Sherwood, 

312 U.S. at 586. I would instead affirm the district court’s 

holding that the trade associations’ claims are barred by 

sovereign immunity and that they failed to plead a proper 

ultra vires claim. 

One might argue that an express waiver is found in the 

APA, which provides for judicial review of final agency 

actions, but such an argument is barred by our Circuit’s

precedent holding that the Library of Congress is not an 

“agency” under the APA.1 See Clark v. Libr. of Cong., 750 

1See 5 U.S.C. § 551 (“For the purpose of this subchapter —

(1) ‘agency’ means each authority of the Government of the United 

States, whether or not it is within or subject to review by another 

agency but does not include — (A) the Congress.”). The Library of 

Congress is part of “the Congress” and therefore is not an agency 

within the meaning of the APA.
2

F.2d 89, 102-03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of 

Cong. v. Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985); 

Wash. Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 

1449 (D.C. Cir. 1994) (noting that Congress clearly subjected 

the Sentencing Commission to the APA’s notice and 

comment provisions in the Sentencing Reform Act of 1984). 

Thus, to exercise judicial review over the Librarian, we must 

rely on another express statutory provision subjecting the 

Librarian to the APA or otherwise waiving sovereign 

immunity over the Librarian’s actions. Congress has at times 

subjected non-agencies, such as the Sentencing Commission, 

to APA review. See supra note 1. But Congress has not 

expressly provided for APA review of the Librarian. 

There is no statutory provision expressly waiving 

sovereign immunity over the Librarian or subjecting the 

Librarian to the APA, and, in my view, the majority’s attempt 

to infer such a waiver by analogy to the Copyright Act 

violates longstanding principles of statutory interpretation that 

a waiver of sovereign immunity “must be construed strictly in 

favor of the sovereign” and “not enlarge[d]...beyond what the 

language requires.” United States v. Nordic Vill., Inc., 503 

U.S. 30, 34 (1992) (internal quotation marks omitted).

Moreover, even without the strong presumption against 

implied waivers of sovereign immunity, the majority’s in pari 

materia argument is unsupported by “traditional interpretive 

tools,” supra note 19, for two reasons. 

First, the in pari materia canon applies when the Court is 

interpreting ambiguous statutory language—not statutory 

silence. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575 

U.S. 768, 774 (2015) (“The problem with this approach is the 
3

one that inheres in most incorrect interpretations of statutes: It 

asks us to add words to the law to produce what is thought to 

be a desirable result. That is Congress’s province. We 

construe [a statute’s] silence as exactly that: silence.”); United 

Shoe Workers of Am., AFL-CIO v. Bedell, 506 F.2d 174, 189 

n.96 (D.C. Cir. 1974) (“A statute is not in pari materia if its 

scope and aim are distinct or where a legislative design to 

depart from the general purpose or policy of previous 

enactments may be apparent”) (cleaned up); 73 Am. Jur. 2d 

Statutes § 87 (“However, the in pari materia rule of statutory 

construction, requiring statutes which relate to the same 

subject matter to be read and applied together, applies only 

when a statute is ambiguous.”). Congress could have 

unequivocally subjected the Librarian to the APA, in the 

DMCA, like it did in the Copyright Act of 1976 for the 

Register of Copyrights. See 17 U.S.C. § 701. The DMCA 

was enacted in 1998, twenty-two years after the Copyright 

Act. The DMCA’s silence with respect to judicial review 

does not create ambiguity. 

Second, even accepting arguendo the majority’s 

argument that the Registrar’s recommendations to the 

Librarian should be subject to judicial review under the 

Copyright Act, that argument still falls short of showing that 

the Court can exercise review over the Librarian—the actual 

defendant in this lawsuit. 

There are good reasons not to treat the Registrar’s 

regulations, subject to the Librarian’s approval, identically to 

mere recommendations that the Register provides to the 

Librarian to assist the Librarian in carrying out its statutory 

obligations to the DMCA. See 17 U.S.C. § 1201. Under the 

DMCA, decision-making authority is vested in the Librarian 

who is directed to consider § 1201’s expressly enumerated 

factors but is also given discretion to consider any factor the 
4

Librarian deems appropriate. Id. The fact that there is little 

statutory information about what the Register must consider 

in its recommendation further supports the position that it is 

unlikely that Congress intended for judicial review of the 

Librarian’s triennial rulemaking. Under this statutory 

scheme, the recommendations are mere suggestions and one 

of many factors and considerations that the Librarian can 

utilize to make its decision. See § 1201(c). By contrast, 

under 17 U.S.C. § 702, “[a]ll regulations established by the 

Register under this title are subject to the approval of the 

Librarian of Congress.” Id. But the statutory authority to 

promulgate those regulations lies with the Registrar. 

Moreover, while the Librarian has authority to approve (or 

reject) the Registrar’s regulations, the statute is silent as to 

whether the Librarian could substantively rewrite the 

regulations and promulgate the rewritten versions.

Because the Library of Congress is not an agency within 

the meaning of the APA and Congress has not otherwise 

expressly waived sovereign immunity over suits challenging 

the Librarian’s actions, I would affirm the district court’s 

holding that the trade associations’ claims are barred by 

sovereign immunity.